WASHINGTON DC – Judge Ketanji Brown Jackson’s Senate confirmation hearing for a seat on the US Supreme Court was an embarrassment. And not for Jackson.
Even before Justice Stephen Breyer announced his decision to retire from the Supreme Court in January, Biden had said he intended to nominate a black woman, who, if confirmed, would be the first black woman to be on the Supreme Court. After Jackson was announced as his pick, Roger Wicker, a Republican senator from Mississippi, said she was a “beneficiary” of affirmative action.
The confirmation hearing was always going to be a circus, given such sentiment and how starkly politicised the Supreme Court is — Barack Obama’s last nominee, Merrick Garland, never got a hearing, despite being nominated months before the election; Trump’s second nominee, Brett Kavanaugh, was accused by a woman under oath of sexual assault, which the Republican senator Lindsey Graham described as “hell” for Kavanaugh; and Trump’s third nominee, Amy Coney Barrett, was rushed through mere days before the 2020 presidential election.
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Even knowing this, however, I was shocked by how embarrassing and insulting the whole endeavour turned out to be. Graham, on day one, said that being called racist was “not going to fly” with Republicans because “we’re used to it”, and so I will not say that they were racist, and will instead simply list a few things that Republican senators asked Jackson, a Harvard Law graduate who clerked for the Supreme Court, worked as a public defender, served as vice-chair of the US Sentencing Commission, and was a judge on the US District Court for the District of Columbia before becoming judge on the US Court of Appeals for the DC Circuit.
Ted Cruz, a Republican from Texas, spent part of his time talking about a book, Antiracist Baby by Ibram X Kendi, which is taught in a private school in Washington DC of which Jackson sits on the board. Cruz asked Jackson whether she believed babies are racist.
Marsha Blackburn, a Republican senator from Tennessee, wondered whether Jackson had a “personal hidden agenda” and accused her of supporting “progressive indoctrination” of children.
Tom Cotton, a Republican senator from Arkansas, asked Jackson whether the country needs more police and whether the US needed tougher or weaker sentencing for drug crimes; Jackson correctly observed that that was not under the remit of the Supreme Court. Graham asked her to rank her religious faith on a scale of one to ten.
Perhaps most odiously, Josh Hawley, a Republican senator from Missouri — who fist pumped the mob assembled before the Capitol on 6 January 2021 and then objected during certification of the 2020 electoral college votes — fixated on the fact that, in seven cases involving child pornography offenders, Jackson sentenced offenders to less prison time than recommended by federal sentencing guidelines. In fact, the majority of all sentences were below the guideline for so-called “non-production” offenders — that is, those who viewed or distributed images of child sexual abuse but did not produce them.
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Some noted that, in addition to a bad faith smear, this may have been a signal to, for example, believers in the QAnon conspiracy about a ring of Satan-worshipping paedophiles embedded in government, business and the media.
On Wednesday, Cory Booker, a Democratic senator from New Jersey, offered an inspired speech, calling Hawley’s behaviour demagogic and reminding Jackson that she was nominated not because of a left-wing agenda, but because she was worthy (it was at this, not the attacks, that Jackson teared up). But by and large, Jackson was left to deal with the attacks — not questions, but attacks — on her own. She handled them with aplomb and was as poised and graceful as one could imaginably be in the face of such indignity. But she should not have had to face it in the first place.
Jackson will likely be confirmed. All Democratic senators are expected to vote for her. Perhaps a few Republicans will, too. And she will be on the court, and history will have been made, and she will spend the rest of her life, or as much of it as she chooses, on the bench. And perhaps for her these will be but a few days.
But for the Senate, and the judicial nomination and confirmation process, and American politics? For the US? The last few days are a permanent stain.
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